MacLeod v The Commissioner of Police for the Metropolis

An appellate court will rarely reverse a trial judge’s findings of primary fact. Intervention is confined to a conclusion unsupported by evidence, founded on a misunderstanding of the evidence, or one which no reasonable judge could reach.

A trial judge may evaluate the whole evidential picture, including eyewitness, physical and expert evidence. The judge is not bound by an expert’s inability to explain a newly advanced and complex reconstruction theory. An appeal does not permit a party to re-argue factual matters merely because a different inference was available.

The claimant, a cyclist who suffered serious head injuries in a collision with a police car responding to an emergency call, could not give evidence about the accident. The central issue at the liability trial was whether he approached the junction from the south along Southgate Road, as he contended, or emerged from Northchurch Road, as the Commissioner contended.

Following a five-day liability-only trial, HHJ McKenna, sitting in the High Court, found that the police driver had negligently struck the claimant from behind and gave judgment for the claimant: [2014] EWHC 977 (QB). The Commissioner appealed, challenging the judge’s evaluation of the factual and expert evidence and alleging an unsupported finding about the cyclist’s direction of travel.

Appeal dismissed. The court unanimously upheld the trial judge’s finding that the claimant had been cycling north on Southgate Road and was struck from behind by the police car.

1. An appellate court should interfere with findings of primary fact only in the rare case where there was no supporting evidence, the evidence was misunderstood, or the conclusion was one no reasonable judge could reach. The court applied that settled approach, as explained in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33.
2. The judge had properly distinguished what witnesses actually saw from their assumptions about the collision. He was entitled to treat the evidence of the cyclist seen on Southgate Road and of the absence of a cyclist on Northchurch Road as reliable. He was also entitled to give limited weight to accounts affected by restricted views, attention focused on the police car, uncertainty, or inconsistency with the physical evidence.
3. The proposed reconstruction theory was raised only in cross-examination and had not previously been considered by either expert. The trial judge was entitled to reject it. A judge assessing a complex collision is not a prisoner of expert evidence and may use common sense when evaluating all the evidence. There was ample evidence that the car and bicycle could have been on converging courses while the car was steering to the right.
4. The judge had not found that the claimant made a right turn before impact. The Commissioner therefore established none of the exceptional grounds for appellate interference.

Tomlinson and Jackson LJJ agreed with Floyd LJ.

• Court of Appeal (Civil Division): Dismissed the Commissioner’s appeal and upheld the trial judge’s findings of fact: [2015] EWCA Civ 688.
• High Court (Queen’s Bench Division): HHJ McKenna held, after a liability-only trial, that the police driver negligently caused the collision and that the Commissioner was liable: [2014] EWHC 977 (QB).